National Insurance Co. Ltd vs Mandrakhan & Ors
2023 Latest Caselaw 1008 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


                              MA No. 183/2009

National Insurance Co. Ltd.                                 ....Appellant(s)
                         Through:- Mr. Suneel Malhotra, Advocate
Vs
Mandrakhan & Ors.                                          ....Respondent(s)
                          Through:- Ms. Mandeep Reen, Advocate

                              MA No. 178/2009

National Insurance Co. Ltd.                                 ....Appellant(s)

                 Through:- Mr. Suneel Malhotra, Advocate

Vs
Saligram & Ors                                          ....Respondent(s)
                     Through:- Ms. Mandeep Reen, Advocate

                              MA No. 182/2009

National Insurance Co. Ltd.                                 ....Appellant(s)

                 Through:- Mr. Suneel Malhotra, Advocate

Vs
Kailash & Ors                                           ....Respondent(s)

                     Through:-Ms. Mandeep Reen, Advocate

Coram:      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                   JUDGMENT

18.05.2023

(ORAL)

1. By this common judgment, the instant Appeals filed by the appellant-

Insurance Company against the award dated 30th January, 2009 are proposed

to be disposed of.

2. The background facts under the shade and cover of which the instant

Appeals have been filed would reveal that on 28th July 2003, three ladies,

namely, Savitri, Shan Kumari and Khik Bai working as labourers and

employed by respondent 2 for the construction work were being transported

from the site of the work at village Malori towards Sidhra in vehicle (Tipper)

bearing No.4625/JK02G allegedly being rashly and negligently driven by

respondent 3 herein, met with an accident seriously injuring the said ladies

later-on succumbing thereto. The deceased ladies were stated to be in the age

group of 22 to 30 years and 40 years respectively, claimed to have been

earning ₹ 4500/-per month in Claim Petitions filed by the legal heirs before

the Motor Accidents Claims Tribunal, Jammu (for short 'the MACT') on

2nd April 2004 impleading therein Insurance Company-appellant herein, as

party respondent 1, besides the owner and the driver of the vehicle as

respondents 2 and 3 respectively.

3. The Claim Petitions filed by the claimants-respondents herein came to

be contested by respondent 1-Insurance Company herein, whereas the

owner and the driver-respondents in the Claim Petitions did not contest the

same and came to be set ex parte.

4. The respondent 1-Insurance Company appellant herein while

contesting the Claim Petitions alleged that the owner-respondent 2 violated

the terms and conditions of the Insurance Policy as respondent 3 driver was

not holding a valid and effective driving license at the time of accident and

though, admitting the operation of the Insurance Policy yet alleged the

offending vehicle being a load carrier was carrying passengers not permitted

in terms of the Policy.

5. Upon the pleadings of the parties, the Tribunal framed the following

issues:

1. Whether an accident took place on 28.07.2003 at Dain Majhalta Sidhra Jammu due to rash and negligent driving of the offending vehicle No. JK02G-4625 in the hands of erring driver in which the deceased namely Savitri, Sham Kumari and Khig Bhai sustained fatal injuries? OPP

2. If issue No.1 is proved in affirmative whether petitioners in each claim petition are entitled to the compensation, if so to what amount and from whom? OPP

3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license as such owner has violated the terms and conditions lof insurance policy? OPR1

4. Whether offending vehicle being a goods carrying vehicle could not carry passengers, if so how? OPR1

5. Relief. O.P.Parties.

6. The claimants-respondents herein in order to prove issues 1, 2 and 5

examined four witnesses, whereas respondent-Insurance Company

examined two witnesses in rebuttal in order to prove the said issues an onus

to prove was put on it.

7. The Tribunal after adjudicating the Claim Petitions awarded an

amount of ₹ 5,01,000/- as compensation in favour of the claimants in Claim

Petition No. 904, titled as "Kailash vs National Insurance Co. & Ors.,

₹3,27,000/- in Claim Petition No. 905, titled as "Saligram & anr. Vs

National Insurance Co. & ors." and ₹ 5,55,000/- in Claim Petition No. 906,

titled as "Mandrakhan vs National Insurance Co.& ors." respectively.

8. The impugned Award is being challenged in the Appeals supra, inter

alia on the following grounds:

a) That since the vehicle involved in the accident admittedly is a Tipper bearing No. JK02G-4625, which as per the definition clause and registration certificate, is a goods vehicle, thus could not have been used for carrying passengers. Here in the present case as admitted by the Claimant as well as the witnesses, the Tipper No. JK02G-4625, a goods vehicle was being used for carrying passengers more than 20 at the time of accident, the insured owner had the knowledge about the vehicle being used for carrying of passengers. This act of the insured owner thus amounts to blunt violation of terms and conditions of the Policy, Route Permit and Registration Certificate. That the Apex Court in a case reported as ACJ 2008 SC 6 has exonerated the Insurance Company from the liability and has fixed the liability on the insured owner. Here in the present case the Learned Presiding Officer has not appreciated the facts and law and thus has passed the impugned Judgment which is against the law laid down by the Hon'ble Supreme Court of India. Hence the Award needs to be set at naught and the liability, if any, needs to be fixed on the insured owner respondent No.2 herein.

b) That the learned Tribunal failed to take note of the fact that the deceased Smt. Khik Bai was an labourer, thus could not have earning ₹ 4,000/- per month as taken by the Tribunal. The Tribunal has not followed the procedure and law as prescribed. The learned Tribunal has taken the income of the deceased as ₹4,000/-and after deducting 1/3rd of her personal expenses, taken the dependency as ₹ 3,000/-per month and annual dependency as ₹3,000/-x12=₹36,000/- and the multiplier applied by the Tribunal as 15. While as here in the present case the Hon'ble Tribunal has awarded an amount of ₹ 5,55,000/- along with interest @ 7.5%.

The amount awarded is thus not in consonance with the law as laid down by the Hon'ble Supreme Court. Therefore, the impugned

Judgment is illegal and bad in the eye of law and the proper multiplier has not been applied. The learned Tribunal ought to have exonerated the Company from the liability and fixed the same on the owner as the Appellant Insurance Company has proved it before the Tribunal that the vehicle involved in the accident is a goods vehicle which was being used with the knowledge of insured owner respondent No.2 herein for carrying passengers, hence this act amounts to blunt violation of terms and conditions of the Policy and Route Permit. The law as laid down by the Hon'ble Apex Court is that if the goods vehicle is permitted to be used for carrying passengers, the passenger risk/gratuitous passenger in goods vehicle, as per Section 147(1)(b)(k), liability thereof under Motor Vehicles Act would be that of the owner of the vehicle. Therefore, the impugned judgment is illegal and bad in the eye of law and may kindly be set aside and the liability, if any, thereof be fixed on the owner of the vehicle i.e., respondent No.2 herein.

c) That the learned Tribunal has committed the grave error of law by fixing the liability on the Insurer Appellant herein of the passengers who were traveling in the goods vehicle i.e., Tipper No.JK02G-4625 at the time of accident. The learned Tribunal has wrongly given twist to the statement of Sh. S. N. Koul, official of the Company; that the said witness of the Company has stated that the Insurance Company had taken the insurance premium for six labourers, who would sit in the cabin of the vehicle along with driver, while as here in the present case more than 20 passengers were traveling in the body of the Tipper i.e., the portion where the goods are kept/carriage part. The Saligram, one of the witnesses has stated that there were 34 passengers traveling in the Tipper to his estimation. Therefore, the learned Tribunal ought to have considered this aspect while considering the statement of witness Sh. S. N. Koul; that as admitted by the Claimant Saligram the persons were traveling in the carriage part of the Tipper and were

34 in number. This aspect has been totally ignored by the learned Tribunal below while passing the impugned judgment. Therefore, the impugned judgment has been passed against the facts and law, hence needs to be set at naught and the liability, if any, as per the law laid down by the Hon'ble Apex Court of India be fixed on the insured owner and the Appellant Company be exonerated from the liability as the Appellant Company is not liable to indemnify the insured owner for the acts of his agent-driver.

d) That the impugned judgment is against the facts and law based on incorrect interpretations of law, terms and conditions of the Policy. Therefore, the impugned judgment is not in accordance with law, hence may kindly be set aside as being illegal and bad in the eye of law and the liability, if any, be fixed on the respondent No.2 herein owner of the Tipper.

e) That the act of the insured owner and his driver respondent Nos. 2 and 3 by permitting 34 passengers approximately to travel in the carriage part of the Tipper amounts to violation of Motor Vehicles Act and rules framed therein. The persons traveling in the carriage part have contributed in the accident. The learned Tribunal below has failed to consider this aspect of law and has wrongly fixed the liability on the Appellant Insurance Company. Therefore, the impugned judgment is illegal and bad in the eye of law, hence may kindly be set aside and the liability, if any, be fixed on the insured owner of the vehicle respondent No.2 herein.

f) That the impugned judgment is otherwise also illegal and bad in the eye of law. The detailed submissions in this regard shall be made at the time of hearing before the Hon'ble Court. The impugned judgment is not sustainable in the eye of law, the liability, if any, is that of the insured owner respondent No.2 herein as per the peculiar facts and circumstances of the present case.

Heard learned counsel for the parties and perused the record.

9. Perusal of the record reveals that the Tribunal while considering the

Claim Petitions, the evidence led thereof by the contesting parties held that

the claimants respondents herein discharged their onus rightly qua the issues

1 and 2 insofar as the occurrence of accident on 28.07.2003 as also the

allegation of rash and negligent driving by the driver of the offending

vehicle is concerned resulting into death of the deceased ladies, inasmuch as,

the entitlement of compensation the claimants would be thereof having

regard to the earnings of the deceased ladies coupled with the age factor of

the deceased ladies.

Further perusal of the record demonstrates that insofar as the issues 3

and 4 are concerned, the Tribunal decided the same against the respondent

Insurance Company-appellant herein on the basis of the evidence led by it

being in the form of oral evidence led through one Hafiz Ullah Rehman,

Incharge Permit Section of the office of Regional Transport as also by

Mr. S. N. Koul, an employee of the respondent Insurance Company

appellant herein who admitted that the offending vehicle was insured with

the Insurance Company appellant herein and that the said Insurance Policy

besides covering the driver and conductor of the vehicle covered four

employees as well.

10. Thus, having regard to the aforesaid evidence before the Tribunal, the

grounds urged in the instant Appeals by the appellant will be adverted to.

11. Insofar as the ground (A) of the Appeals is concerned, it is being

contended that the offending vehicle was a Tipper and as per the

Registration Certificate was registered as a goods vehicle, as such, could not

have been used for carrying passengers, however, it emanates from the

insurance Police that the Insurance Company though knowing the nature and

make of the vehicle being a Tipper insured the same along with 4 employees

besides the driver and the conductor. Therefore, it does not lie in the mouth

of the appellant-Insurance Company to suggest that the vehicle as per the

Registration Certificate has been registered as a goods vehicle not meant for

carrying passengers, moreso when the appellant Insurance Company did not

lead any evidence to prove that the deceased ladies were passengers. The

ground urged, as such, is not sustainable.

12. Insofar as the ground (B) urged in the memo of Appeals is

concerned, wherein it is being contended that the deceased Khik Bhai being

a labourer could not have been earnings ₹ 4,000/- per month as taken by the

Tribunal and that the Tribunal after deducting 1/3 rd of her personal expenses

has taken the dependency of ₹ 3,000/- per month and annual dependency as

₹ 36,000/- while applying the multiplier as 15. The Insurance Company-

appellant herein, however, in regard to this ground did not lead any evidence

before the Tribunal or else contradicted the evidence led by the claimants-

respondents herein insofar as the earnings of the deceased lady is concerned.

The Tribunal while computing the earnings of the deceased has rightly

applied the multiplier and worked out the amount of compensation. The

Tribunal in this regard cannot said to have faultered. The ground,

accordingly, is rejected.

13. Insofar the ground (C) urged in the memo of Appeals is concerned

wherein it is being urged that the respondent-Insurance Company appellant

herein could not have been saddled with the liability by the Tribunal for

indemnifying insured owner qua the death of the ladies traveling in the

offending vehicle, as the said deceased ladies were passengers traveling in

the offending vehicle. The said ground urged by the appellant also cannot

said to be legally sustainable in view of the fact that the deceased persons

traveling in the offending vehicle having died in the accident came to be

proved to have been labourers of the husband of owner of the offending

vehicle travelling therein.

14. Insofar as the grounds (D), (E) and (F) are concerned, same in essence

are repetition of the grounds dealt with hereinabove, as in the grounds in

question, the appellant Insurance Company herein has reiterated that the

impugned award has been passed on overlooking the terms and conditions of

the Policy, inasmuch as, the insured-owner and his driver being respondents

2 and 3 violated the said terms and conditions while allowing the passengers

to travel in the offending vehicle and that the Tribunal failed to consider this

aspect of the matter and wrongly saddled the Insurance Company appellant

herein with the liability and also that the impugned award is otherwise illegal

and bad in the eyes of law.

15. Risking repetition, it is re-iterated that the Tribunal did not commit

any fault while passing the impugned award having considered the Claim

Petitions in question, inasmuch as, the evidence led by the claimants and the

respondent Insurance Company-appellant herein. The Tribunal seemingly

has considered the Claim Petitions rightly and in accordance with the

provisions of the Motor Vehicles Act, inasmuch as, has rightly placed

reliance on the judgments the Apex Court passed in "APSRT vs M.

Ramadevi and ors., 2008(1) Supreme 566" as well as in case titled as

"Oriental Insurance Co. Ltd vs Mukhteshwar Chib and ors" passed in

CIMA No. 21/2005 by this Court.

Furthermore, it is pertinent and significant to mention here that law is

no more res-integra that in a motor accident claim the strict principle of

evidence and standard of proof like in criminal cases are inapplicable. The

contentions raised and the grounds urged in the memo of Appeals that the

Tribunal erred while considering the Claim Petitions and the evidence on

record while passing the impugned Awards in this regard is not legally

sustainable in view of the law laid down by the Apex Court in case titled as

"Anita Sharma and others vs New India Assurance Co. Ltd and another,

2021(1) JKJ[SC] 140" wherein at para 22 following came to be observed:

"22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of the preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."

16. For what has been observed, considered and analyzed as above, the

impugned award does not call for any interference. Resultantly, Appeals fail

and are dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 18.05.2023 Vijay Whether the order is speaking; Yes Whether the order is reportable: Yes/No